Cities across New Jersey have enacted mandatory paid sick leave laws over the past few years, and now an effort is underway to pass similar legislation at the state level. NJCJI testified against such legislation when it came before the Assembly Labor Committee on October 9.
Although proponents of the bill, A2354, focus on allowing employees to stay home when they are sick, the legislation would do much more than that. The liability employers would be exposed to by this bill is overwhelming.
Under A2354, an employee who does almost anything related to paid sick leave, including simply informing any person about the availability of paid sick leave, gets a 90 day window during which any adverse employment action is presumed to be retaliatory. If an employee files suit during that 90 day window, the burden is on the employer to prove in court that the action was unrelated to the employees’ sick leave-related activity. It is not even clear that reassignments to meet business demands would be lawful under this legislation, since “retaliatory action” is defined to include even an unfavorable work assignments. Under these conditions, employers would have difficulty effectively managing their employees without generating a lawsuit.
The expansive scope of potential liability is compounded by the severe penalties that attach to violations of this legislation. Plaintiffs are entitled to actual damages plus an equal amount of punitive damages, plus attorney fees and court costs. The high cost of litigation, and the financial risk of losing the case, mean many claims would settle immediately, regardless of their merit. These costs are all passed on to consumers.
Disputes over regulatory mandates such as paid sick leave can be resolved more efficiently through agency actions, and more fairly by removing one-sided presumptions. Putting enforcement in the hands of the court may lower the bill’s fiscal note, but it is still a costly policy choice for employers and consumers.